The
Challenge to Islamic Jurisprudence

by Dr. Robert D. Crane

Part One: The Challenge

Specialists in the study of comparative legal systems
and their supporting religious frameworks have always been
interested in the origins of religion as a cause of conflict.
Recently, many have become even more interested in the future
of religion as a cure for such conflict.

Recently, a powerful alliance of four disparate
movements has come together to form a unified foreign policy
in response to the new world disorder that emerged following
the relative stability of the half-century-long Cold War.
This quadruple alliance consists of two rationalistic trends
that have originated during the past half century. These may
be designated as the permanent foreign policy establishment,
which seeks stability through the balance of power, and the
movement known as neo-conservatism, which seeks to project
America’s power to build a better world.

The other two movements may be called anti-rationalistic
in the sense that a closed ideology trumps objective reason
in understanding and dealing with the complex forces in the
world. The origins of these two date back more than a century.
They are the movement known as Evangelical or apocalyptic
millenarianism, and the movement that one might call simply
secular Zionism, as distinct from the older mainline Jewish
concept of spiritual Zionism.

These four movements or trends differ in
their potential to resolve conflicts and reduce the underlying
causes. They differ especially in their understanding of Islam.
They range in descending degree of openness from the permanent
foreign policy establishment, perhaps best typified by Henry
Kissinger, to the secular Zionists. The former have been basically
indifferent to Islam, either because they thought that it
might become useful in countering political radicalism or
because they assumed that it is a declining force in the world
and no longer will play a real role in orchestrating the global
future. The secular Zionists, on the other hand, fear Islam
as the only real threat to the security of Israel.

The alignment of the irrational led by Jerry
Vines, past president of the Southern Baptist Convention,
and the Reverend Jerry Falwell, with the proudly rational,
neo-conservative movement, led by William Kristol’s
Weekly Standard, is an unprecedented development in American
intellectual history, much to the consternation of the permanent
foreign policy establishment, but much to the delight of the
those who fear for the security of Jews in their ancestral
homeland.

Until their alignment after 9/11 in an alliance
with the neo-conservatives, the extremists among the millenarian
Evangelicals, namely, those who attacked Islam as a warlike
religion and the person of the Prophet Muhammad by calling
him a bandit and a paedophile, were a fringe phenomenon in
American society. As these radicals have moved from the fringe
into the mainstream, the formerly mainstream Evangelicals
have concluded that these extremists are hijacking their own
religion and that the moderates must actively counter the
extremism that can compromise Christian love.

On May 7th, 2003, the National Association
of Evangelicals convened a summit conference of forty leaders,
representing 43,000 congregations, to address the issue of
whether they should focus their efforts on countering or converting
Muslims. Their conclusion was that the mission of proselytizing
must have top priority and that this necessarily conflicts
with the radical efforts to brand Islam and the Prophet Muhammad
as inherently evil and violent.

As Protestant extremism declines in the aftermath
of the successful war in Iraq, the negative assessment of
Islam as a religion has been taken up by neo-conservative
leaders within the Catholic Church. One of the most articulate
of such leaders appears to be Michael Novak, one of the top
intellectuals in America’s first policy think-tank,
The American Enterprise Institute.

In the April, 2003, issue of America’s
leading journal on religion in public life, First Things,
Novak published a seminal article, “The Faith of the
Founding.” In this lead article he brilliantly portrays
the essential teachings of the traditionalist movement, led
originally by Edmund Burke, that led to the founding of the
Great American Experiment. He becomes controversial, however,
in his contention that even though some Muslims may be good,
Islam is inherently bad and un-American because it does not
recognize a direct relationship of the person with God and
therefore can have no conception of human rights or of government
limited by recognition of the sovereignty of God.

This represents an entirely new approach
to Islam, because it is based not on generalizing from the
action of extremist Muslims but on denial of what centuries
ago the greatest Muslim scholars, all imprisoned for their
beliefs, considered to be the three basic fundamentals of
Islam as a religion. The newest strategy apparently is to
single out these essential truths of Islam, deny that they
exist, and assert that their absence constitutes the Islamic
threat. This sophisticated strategy may be more effective
over the long run than are the simplistic claims of Pat Robertson
and Franklyn Graham that Muslims are bandits.

The challenge to American Muslims, especially
after 9/11, is to explain the difference between Islam as
a religion and Muslims as its supposed practitioners.

Equally important is the challenge for Muslims
to put their own house in order by marginalizing the extremism
that can give rise to violence and by taking advantage of
the post-Iraq environment to end the poverty and oppression
that feed such extremism. American policymakers can not afford
to deal only with benign theoretical formulations, when the
facts on the ground, strikingly demonstrated by 9/11, are
so malignant.

Part Two:The
Response

Over the long run, the most productive initiative by
the still largely silent majority of Muslims in marginalizing
Muslim extremists is to fill the intellectual and spiritual
void that serves as an ocean in which the extremists can swim.
This initiative can provide the favorable environment needed
for Muslims to ally with like-minded Christians and Jews in
order to show that classical Islam and classical America are
similar, even though many people do not understand or live
up to the ideals common to both.

This is the only way to convince the extremists
that their confrontational approach to the “other”
is not necessary; that the threat mentality of those who think
only about their own survival and are obsessed with catastrophe
and conspiracy can backfire; and that only those can truly
prosper over the long run who can transcend their own self-centered
interests in order to develop an opportunity mentality together
with those who are no longer merely the “other”
but now are a single pluralist community.

In order to fill the intellectual void, Muslims
need to emphasize the universal Islamic principles, the maqasid
al shari’ah, which spell out precisely what Michael
Novak says do not exist in Islam. These maqasid, following
the methodology instituted by the Prophet Muhammad and perfected
in the architectonics pioneered six centuries ago by the master
of the art, Al-Shatibi, are considered to consist of seven
responsibilities, the practice of which actualize the corresponding
human rights.

The first one, known as haqq al din,
provides the framework for the next six in the form of respect
for a transcendent source of truth to guide human thought
and action. God instructs us in the Qur’an,
wa tamaat kalimatu Rabika sidqan wa ‘adlan,
“and the word of your Lord is perfected in truth and
justice.” Recognition of this absolute source of truth
and of the responsibility to apply it in practice are needed
to counter the temptations toward relativism and the resulting
chaos, injustice, and tyranny that may result from de-sacralization
of public life.

Each of these seven universal principles
is essential to understand the next and succeeding ones. The
first three operational principles, necessary to sustain existence,
begin with haqq al nafs or haqq al ruh,
which is the duty to respect the human person. The ruh or
spirit of every person was created by God before or outside
of the creation of the physical universe, is constantly in
the presence of God, and, according to the Prophet Muhammad,
is made in the image of God. This is the basis of the intimate
relationship between God and the human person as expressed
in the Qur’anic ayah, “We are closer
to him than is his own jugular vein.”

This is also the basis of the prayer offered
by the Prophet and by countless generations of Muslims for
more than a thousand years: Allahumma, inna asaluka hubbaka
wa hubba man yuhibbuka wa hubba kulli ‘amali yuqaribuni
ila hubika, “O Allah! I ask You for Your love and
for the love of those who love You. Grant that I may love
every action that will bring me closer to You.”

At the secondary level of this principle,
known as hajjiyat or requirements, lies the duty
to respect life, haqq al haya. This provides guidelines
in the third-order tahsinniyat for what in modern parlance
is called the doctrine of just war.

The next principle, haqq al nasl,
is the duty to respect the nuclear family and the community
at every level all the way to the community of humankind as
an important expression of the person. This principle teaches
that the sovereignty of the person, subject to the ultimate
sovereignty of God, comes prior to and is superior to any
alleged sovereignty of the secular invention known as the
State.

This principle teaches also that a community
at the level of the nation, which shares a common sense of
the past, common values in the present, and common hopes for
the future, such as the Palestinians, Kurds, Chechens, Kashmiris,
the Uighur in China, and the Anzanians in the Sudan, has legal
existence and therefore legal rights in international law.
This is the opposite of the Western international law created
by past empires, which is based on the simple principle of
“might makes right.”

The third principle is haqq al mal,
which is the duty to respect the rights of private property
in the means of production. This requires respect for institutions
that broaden access to capital ownership as a universal human
right and as an essential means to sustain respect for the
human person and human community. This principle requires
the perfection of existing institutions to remove the barriers
to universal property ownership so that wealth will be distributed
through the production process rather than by stealing from
the rich by forced redistribution to the poor. Such redistribution
can never have more than a marginal effect in reducing the
gap between the inordinately rich and the miserably poor,
because the owners in a defective financial system need not
and never will give up their economic and political power.

The next three universal principles in Islamic
law concern primarily what we might call the quality of life.
The first is haqq al hurriya, which requires respect
for self-determination of both persons and communities through
political freedom, including the concept that economic democracy
is a precondition for the political democracy of representative
government.

The secondary principles required to give
meaning to the parent principle and carry it out in practice
are khilafa, the ultimate responsibility of both
the ruled and the ruler to God; shura, the responsiveness
of the rulers to the ruled, which must be institutionalized
in order to be meaningful; ijma, the duty of the
opinion leaders to reach consensus on specific policy issues
in order to participate in the process of shura; and an independent
judiciary.

The second of these last three maqasid
is haqq al karama or respect for human dignity. The
two most important hajjiyat for individual human
dignity are religious freedom and gender equity. In traditional
Islamic thought, freedom and equality are not ultimate ends
but essential means to pursue the higher purposes inherent
in the divine design of the Creator for every person.

The last universal or essential purpose at
the root of Islamic jurisprudence, which can be sustained
only by observance of the first six principles and also is
essential to each of them, is haqq al ‘ilm
or respect for knowledge. Its second-order principles are
freedom of thought, press, and assembly so that all persons
can fulfill their purpose to seek knowledge wherever they
can find it.

This framework for human rights is at the
very core of Islam as a religion. Fortunately, this paradigm
of law in its broadest sense of moral theology is now being
revived by what still is a minority of courageous Muslims
determined to fill the intellectual gap that has weakened
the Muslim umma for more than six hundred years, so that a
spiritual renaissance in all faiths can transform the world.